The Bar Association assists members with recovery from solicitors of unpaid fees, which have been outstanding for more than three months, but less than two years.
In providing this assistance, the Bar Association is not undertaking to act for the member in any legal capacity.
Assistance will generally be offered as follows:
1. The Association will write to the solicitor requesting payment.
2. In the event that payment is not forthcoming, the Association will telephone the solicitor seeking an explanation.
3. If the above efforts are unsuccessful, the Association provides names of firms of solicitors or costs consultants who are willing to provide the member with advice or professional assistance for the recovery of the member’s fees.
Requests for fee recovery assistance from the Bar Association should include the following:
1. A letter/email containing a brief chronology of events;
2. A copy of the costs disclosure and any costs agreement;
3. A copy of all invoices rendered; and
4. Any relevant correspondence.
The Bar Association can also provide assistance in relation to general enquiries concerning fee recovery. Email Megan Batchelor or call her on ph: (02) 9232 4055.
Fee Recovery by Costs Assessment – Procedural Outline for Barristers
The following abbreviated outline assumes a simple case of an unpaid barrister seeking recovery of fees through the costs assessment system.
1. File application for assessment with the Manager, Costs Assessment. Pay filing fee.
(a) Allow at least 30 days after delivery of the bill before filing (s 352(4)).
(b) The prescribed form is Form 2 – Application by Legal Practice for Assessment of Costs (Other than Party/Party Costs), which can be downloaded here. A copy of the bill must be attached. Relevant and preferably detailed information for the costs assessor should also be included or attached. If in doubt, consider retaining a costs consultant.
(c) The form and attachments must be filed in triplicate (assuming there is only one respondent to be served). The Manager’s office is in the Supreme Court building.
(d) The filing fee is usually $100 or 1% (whichever is greater).
2. The Manager, Costs Assessment then takes a series of steps. The Manager:
(a) serves a copy of the Application on the respondent and asks for objections within 21 days (s 356; reg 122);
(b) sends a copy of any objection to the applicant and asks for any response within 21 days (reg 122);
(c) sends a copy of any response to the respondent (reg 122);
(d) refers the application to a costs assessor (s 357) and notifies the parties of the fact.
3. The costs assessor also contacts the parties. The process from this point is controlled by the costs assessor, who may require further evidence or information. There may also be further submissions. (See ss 358, 359.) The process can be short or long.
4. The assessor determines the application and issues a certificate of determination of costs (s 368) and a statement of reasons (s 370).
(a) In an ordinary case where there is no order as to the costs of the assessment, the assessor sends these document to the Manager, Costs Assessment and to the parties.
(b) If the assessor orders the barrister to pay the costs of the assessment on the ground that the bill has been reduced by at least 15% or on grounds relating to non-disclosure, the assessor issues a certificate for those costs (s 369) to the parties and sends (or should send) that certificate to the Manager, Costs Assessment and to the parties, but sends the substantive s 368 certificate only to the Manager, Costs Assessment. The Manager, Costs Assessment only sends the s 368 certificate to the parties upon payment of the costs of assessment (s 368(6)).
5. If the costs paid are less than the amount certified, the s 368 certificate may be filed in a court with relevant monetary jurisdiction as a deemed judgment (s 368(5)). (Note that recovery of interest on fees through the assessment system can be problematic. Different views exist about this subject.)
There is a useful summary with further links on the Supreme Court website.